June 19, 2006

McLennan Ross Legal Counsel

Environmental consultant convicted after undertaking landfill closure

An Energy, Environmental & Regulatory Law Update
A recent decision of the New Brunswick Provincial Court highlights the potential liability of environmental consultants for pollution beyond their control.

In R. v. Robert G. Lutes and Gemtec Limited [2006 NBPC 12 (N.B. Prov. Ct.)], the City of Moncton hired Gemtec to make recommendations, then develop and implement a plan to close a city landfill. Lutes was the owner and chief engineer of Gemtec.

The landfill, which had been receiving a variety of wastes since the early 1970s, was decommissioned in 1992 but continued to release significant quantities of leachate into an adjacent river. Gemtec assessed the landfill and recommended measures to contain or prevent the leachate from leaving the site. Under Gemtec’s proposed plan, leachate would continue to flow into the adjacent river, but would be managed and diluted to achieve compliance with provincial and federal water quality guidelines. The City accepted Gemtec’s recommendation.

The preparation and execution of the Gemtec plan was carried out under the direction of the City and the provincial Department of Environment. The plan included annual pollution monitoring reports to Environment Canada and the federal Department of Fisheries and Oceans.

During implementation of the closure plan, Gemtec and its contractors selected preferred routes and installed a pipe to control the flow of leachate to the river. Public concern with the measures led to the sampling of the leachate by environmental groups and Environment Canada. The leachate was found to be acutely lethal to aquatic life. Charges against Gemtec, Lutes, and the City were laid under the federal Fisheries Act, which prohibits the deposit of deleterious, or harmful, substances into fish habitat.

In their defence, Gemtec and Lutes argued that they were not responsible for the deposit as the leachate was already polluting the river before they became involved with the site. They also argued that their role was limited to providing advice and implementing the plan as approved by the City and the provincial regulator.

The Court held that Gemtec and Lutes had a large degree of influence and control over the development and implementation of the closure plan. Although under the supervision of City and provincial officials, Gemtec’s role went beyond providing recommendations and advice. Gemtec’s compliance with City and provincial regulations was not relevant to the Fisheries Act charges, nor were the financial constraints imposed upon Gemtec by the City. The Court found that Gemtec had failed to recommend or implement reasonable measures to avoid the unlawful deposit.

The Court also emphasized the failure of Gemtec and Lutes to consult the federal regulators or seek legal advice regarding the lawfulness of the recommended closure plan.

Gemtec and Lutes were convicted of the Fisheries Act charges, and will be sentenced this summer. Fines for an unlawful deposit range from several hundred dollars in very minor cases up to $300,000.

R. v. Gemtec illustrates the potential liability faced by environmental consultants who are involved in the recommendation and implementation of pollution control programs. Consultants may be prosecuted under the Fisheries Act even though the pollution itself predates their involvement, and even where development and implementation of the program is supervised by local and provincial regulators. This case underlines the need for consultants to be fully aware of regulatory requirements and to seek legal advice to resolve any uncertainties.